The Alabama Supreme Court, in a 6-3 decision on August 15, 2014, reaffirmed that patients can sue drugmakers who mislead doctors into believing that prescription medicines the companies market do not cause harmful side‑effects. The case is Weeks v. Wyeth, and the decision came after the Supreme Court ruled against the drugmakers in that same case last year. HGD attorneys Lew Garrison and Chris Hood represent the patient in the case, Danny Weeks.
The decision won a clear majority of the Alabama Supreme Court. Six of the nine justices voted for it. Associate Justice Michael F. Bolin authored the decision, joined by Associate Justices Stuart, Main, Wise, and Bryan, and including Associate Justice Shaw, who fully concurred and specially wrote to address responses to the earlier decision in the case.
Weeks’ attorney Lew Garrison stated, “We agree with the decision, and we’re very pleased that Danny and his wife Vicki will get their day in court. It’s a victory for patients.” Mr. Weeks was hurt by the brandmakers of the drug Reglan, according to the suit.
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The decision allows patients injured by prescription drugs to sue when their doctors are deceived, including when a pharmacist fills the prescription with a generic replica of the prescribed drug. Mr. Weeks received a generic replica of Reglan, as allowed by law. The law allowing the substitution, in Alabama and in all other states, requires the federal Food and Drug Administration to first approve the generic tablet as a bioequivalent replacement for the brandname drug. The substitution ensures that the patient receives the same medicine, not a different medicine. The makers of the branded drug furnish the information about it and are responsible by law for the information, including updating it to warn of significant risks to patients. The U.S. Supreme Court clearly confirmed that responsibility of branded drug companies in PLIVA v. Mensing, a landmark decision in 2011.
The facts of generic substitution for branded drugs are foreseeable and well known by everyone who works with prescription medicines — doctors, pharmacists, and the Brand Defendants in this case. The Brand Defendants made Reglan and, according to the lawsuit, created the information about it which misled Danny Weeks’ doctor, leading to the severe injury.
Weeks suffered a permanent and disabling neurological injury. He alleges that doctors who prescribed the brand drug were misled about the side-effects, and the deceit hurt him.
National media have covered the case. The Wall Street Journal, in reporting the first decision in it last year, explained the allegation that Danny’s doctor “relied on the representations made by the name brand manufacturer to assess the risks [of the drug].” The WSJ reported that “[a] brand name manufacturer could ‘reasonably foresee’ that a physician would rely on its warning label ‘even if the patient ultimately consumed the generic version of the drug,’ Justice Bolen wrote.”
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This victory for patients also is positive for doctors, who are owed a duty of truth by companies which promote the drugs the doctors prescribe. “Telling the truth about these drugs allows doctors to make good choices about which medicines to prescribe,” according to Weeks’ other attorney, Chris Hood. “When the truth is concealed, patients are hurt, which happened here.”
The decision for Weeks is not an outlier, contrary to the view of some commentators. It rests on settled Alabama law, and other courts have ruled the same way, including the federal court which certified the question to the Alabama Supreme Court. Three other federal courts applying the laws of other states likewise have ruled against branded drug companies in favor of patients hurt by generic substitute drugs. Three state appeals courts have addressed the same question, and two of them — in California and now in Alabama — sided with the patients against makers of the brand drug. Alabama joins a number of other state and federal courts which permit this type of suit.
The similar federal decisions are recent. They are Colas v. Abbvie, Inc., 2014 WL 2699756 at *3 (N.D. Ill. June 13, 2014) (ruling under Virginia law for a patient who, like Danny Weeks, was dispensed a generic substitute drug and sued a brand defendant for fraud); Dolin v. SmithKline Beecham Corp., 2014 WL 804458 (N.D. Ill. Feb. 28, 2014) (ruling under Illinois law for a generic‑ingesting patient against brand defendant), mandamus denied, In re GlaxoSmithKline, LLC, 2014 WL 2506461 (7th Cir. June 4, 2014); Kellogg v. Wyeth, 762 F. Supp. 2d 694, 700 (D. Vt. 2010) (ruling under Vermont law for a generic‑ingesting patient against brand defendant).
The California decision in favor of patients is Conte v. Wyeth, Inc., 168 Cal. App. 4th 89, 85 Cal. Rptr. 3d 299 (2008) (ruling for a generic-ingesting patient under California law). The other state appellate decision on the question is Huck v. Wyeth, Inc., 2014 WL 3377071 (Iowa July 11, 2014), which was decided for the branded drug companies. Huck is a plurality decision, not a majority opinion, so it is not precedent even for Iowa courts, according to the Iowa Supreme Court. Audubon‑Exira Ready Mix, Inc. v. Illinois Cent. Gulf R. Co., 335 N.W.2d 148, 151 (Iowa 1983) (plurality decisions are not precedent).
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W. Lewis Garrison, Jr., is a senior partner of Heninger Garrison Davis, LLC, headquartered in Birmingham, Alabama, and Christopher B. Hood is an associate attorney of HGD. They represent Danny and Vicki Weeks. HGD has offices in Atlanta, Birmingham, Los Angeles, New Jersey, New York, and metropolitan Washington, D.C. Our attorneys are leaders in national cases involving prescription drugs and medical devices.